ALL ELEVEN JUDGES OF THE D.C. CIRCUIT WILL HEAR LIBERTARIAN CAMPAIGN FINANCE CHALLENGE

On June 29, U.S. District Court Judge Beryl Howell, a Clinton appointee, issued an opinion in Libertarian National Committee v Federal Election Commission, saying that the case deserves to be heard by all the judges of the U.S. Court of Appeals, D.C. Circuit. This will be the first time the entire D.C. Circuit has heard a lawsuit filed by a minor political party (excluding cases filed jointly by major parties as well). The Circuit case number is 18-5227.

The Libertarian Party filed this case in 2016, and it has taken two years to get to this stage. The Federal Election Commission had argued strenuously that this case should not be sent to the en banc D.C. circuit.

The issue is the federal law that limits annual contributions to political parties to $33,900 per year, even if the donor is deceased. The Libertarian Party had filed this case after receiving a bequest of $235,575 from Joseph Shaber. The FEC said that the money had to be put in an escrow account, and the party could only receive $33,900 per year.

The theory behind a law telling individuals that they cannot give more than a certain amount of money in any one year to a political party is that the law is needed to stop bribery. Congress felt if individuals could give very large amounts of money to a party, that individual might demand special treatment from the party’s members of Congress, or that party’s President. This rationale has no relevance to individuals who give money to parties that have never elected any members of Congress. Also, it has no relevance to deceased givers, especially when the evidence shows that the party did not know that the individual had named the party in his or her will.

The evidence in the case includes affidavits from other individuals, now living, who say they intend to give even bigger bequests to the party. For example, Bill Redpath, one of the party’s past national chairmen, says he intends to leave more than $1,000,000 to the party when he dies. This type of evidence will guarantee that the court realizes this issue is capable of repetition. The evidence also shows that the party recently received another bequest of over $100,000.

In late 2014, Congress amended the law to permit bigger individual donations to parties if they money is used for one of three purposes: (1) to help pay for a party’s legal expenses; (2) to help it pay for putting on a presidential convention; (3) to pay for a new national headquarters. The FEC has argued in this case that the burden on the party is not severe, because it can accept all the money from the bequest at once if it uses the money for one or more of those purposes.

However, this argument cuts both ways. The Libertarian Party argues that if the law now doesn’t seem to worry about bribery in the case of those particular kinds of gifts, then that suggests there should be no worry about bribery even if the money is used for any purpose.

The U.S. Court of Appeals has eleven full-time judges, including Brett Kavanaugh, the recent nominee to the U.S. Supreme Court. Four of the eleven judges are appointees of Republican presidents, and seven were appointed by Democrats.

This is only the fourth lawsuit in history to get this en banc treatment. The others were Buckley v Valeo, Holmes v FEC, and California Medical Association v FEC.

On July 9, President Donald Trump announced that Judge Brett Kavanaugh is his choice for the U.S. Supreme Court seat being vacated by Justice Anthony Kennedy. Kavanaugh has only had one case involving voting rights for minor party or independent candidates, and that case showed he is not sympathetic to voters who desire to vote for candidates other than Democrats and Republicans.

In Libertarian Party v District of Columbia Board of Elections, 682 F.2d 72 (2012), he upheld the policy of the D.C. Board of Elections, which is not to count the write-in votes for declared presidential write-in candidates. The only reason for the policy, according to the Board of Elections, is to save money.

The case arose in 2008, when the Libertarian Party was unable to get its presidential nominee, Bob Barr, on the ballot in the District of Columbia. D.C. election laws let write-in presidential candidates file to have their write-ins counted, if they submit the names of three presidential elector candidates. The procedure is not easy, because the presidential elector candidates must have lived in D.C. for three years. Barr was the only presidential candidate who filed for write-in status.

The D.C. Board said that it did count his votes, because it determined that 1,138 write-in votes for president had been cast. But, this was the total number of write-in votes, not the number cast for Barr. Therefore, the D.C. official election returns did not mention Barr. All the government publications that tabulate the vote for president in the United States thus credited Barr with zero votes in D.C.

The same is true for the non-governmental publishers of reference books, such as Congressional Quarterly, former publisher of America Votes. They all showed zero votes for Barr in D.C.

For anyone to say that a candidate’s vote has been "counted", when the number of votes he or she received is not revealed or known, contradicts the plain meaning of "counting votes." If D.C. had released official election returns showing only the total number of all votes cast in November 2008 for President, without specifying how many votes any particular candidate received, no one would claim that the Board had "counted" anyone’s votes.

The evidence in the case showed that in some cases, over 10% of a minor party or independent presidential candidate’s national vote total consisted of write-ins that had been counted by various states. This was true for Eugene McCarthy in 1976, and Ralph Nader in 2004. If all jurisdictions refused to tally write-ins for president, such hostile action would have had a severe impact on the reported national vote total for such candidates. Also, more recently, 2016 presidential candidate Evan McMullin received 30.3% of his reported votes as write-in votes.

As long ago as 1915, a federal court in Indiana had written, "If a man has a right to vote, he has a right to have his vote received and counted by the proper election officers; otherwise, the right to vote is but an empty right." U.S. v Aczel, 219 F. 917, at 932.

In 1999, a U.S. District Court in Washington, D.C., had written, "When a citizen steps into the voting booth to cast a vote, he or she intends to send a message in support of or in opposition to the candidate or measure at issue…The message of the vote is received when the election results are released thereby completing an important communication by the public to the government…

"Based on the vote’s strong communicative content and the history of the vote’s central importance to a democratic system of government, this Court concludes that the result of votes properly cast are core political speech…To cast a lawful vote only to be told that that vote will not be counted or released is to rob the vote of any communicative meaning whatsoever." Turner v D.C. Board of Elections, 77 F.Supp 2d 25 (1999).

The U.S. Supreme Court said in Bush v Gore, 531 US 98 (2000), "Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another."

At the oral argument, Judge Kavanaugh asked the attorney for the Libertarian Party, "What’s your answer to the District’s argument that you can get the ballots under Freedom of Information and count them yourselves, or put them up on the internet and let someone count them? The whole thing has to do with the cost? The First Amendment requires the District to pay for it? That’s your argument?"

The attorney for the Libertarian Party responded by pointing out several U.S. Supreme Court opinions that say governments can’t condition voting rights on the mandatory payment of money. He might have added that the publications that report the national presidential vote will not accept any results that have not been tallied by a government. We know this is true, because in some states, where there is no procedure for a write-in declaration of candidacy, and the states don’t report the write-in votes, but the counties do, some energetic individuals have tallied up the write-in results furnished by the counties. But, the Clerk of the U.S. House, the Federal Election Commission, and the publisher of America Votes, always refuse to accept such results, because the totals aren’t "official."

Kavanaugh did not write the decision in Libertarian Party v D.C. Board of Elections, and the vote was 3-0, so he is not the only judge responsible for the opinion. The other two judges were Merrick Garland and David Tatel, appointees of Democratic presidents.

On July 9, a Montana state trial court removed the Green Party from the ballot, almost four months after it had submitted its petition, and after the state had already held a primary for it. The Democratic Party had challenged the party’s petition in April, by filing a state court lawsuit against the Secretary of State, saying his determination that the party had enough valid signatures was in error. The Secretary of State has asked the Montana Supreme Court to hear his appeal, and that court has accepted the case. All the briefs are due July 30. The case is Larson v Secretary of State, DA18-0414.

The state court invalidated a handful of signatures in which the signer had signed, but had failed to print his or her name; and also invalidated a few in which the signer had not dated the signature. With these signatures gone, the party didn’t meet the distribution requirement, which requires approximately 140 signatures in each of 34 state house districts.

An earlier issue of B.A.N. had said that the Democratic presidential electors in Washington state who didn’t vote for Hillary Clinton had dropped their federal lawsuit. That was correct, but incomplete. The electors re-filed their case in state court. It is now pending in the State Supreme Court. Guerra v Washington State. Similar cases are pending in Colorado and Minnesota.

Reforming the Presidential Nominating Process, Front-Loading’s consequences and the National Primary Solution, by Lisa K. Parshall. 2018, Routledge, 256 pages.

Lisa K. Parshall is as Associate Professor of Political Science at Daeman College in Amherst, New York. She is astounded that the United States seems so complacent about the problem that voters are not treated equally in the presidential primary process. Voters who live in states with early caucuses and primaries have far greater voting power than voters who live in states that don’t vote until May or June.

She reminds us that the period 1969-1972 saw a huge change in the major party presidential nomination process. Whereas in 1968, only a minority of states had presidential primaries, by 1972 a majority did. In 1968 Hubert Humphrey was able to gain the Democratic nomination even though he didn’t run in a single primary. By 1972, though, the nomination went to George McGovern, someone who would never have been nominated if he had not done well in the primaries.

So, she wonders, what was the point of democratizing the process, if the nation was then going to accept a system in which some voters have so much more power than others? She says the most important privilege of membership in a major party is the ability to help choose its presidential nominee. Yet voters in Iowa, New Hampshire, South Carolina, and Nevada have far more power than members in other states.

Parshall does not advocate for any other reform of the major party presidential selection process. She does not mention ranked choice voting. She seems at peace with the varying qualifications for voters across the country.

Some states have closed presidential primaries; others don’t. Some have restrictive rules for early voting and voter registration; others don’t. The book does not concern itself with those elements of inequality across the nation.

Chapter One gives the history of presidential primaries, which were first used in 1912. It also discusses the literature as to whether primaries have really ended the ability of party insiders to control the outcome, and also the literature about whether it is better policy to let party elites determine the nominee (as in almost all other democratic countries) or whether an unfiltered popular vote process is better.

Chapter Two concerns 2008, the year with the greatest frenzy for states to vote early. 2008 is the only year in U.S. history in which half the presidential primaries were in January and February. The median presidential primary date was February 12 (meaning half the primaries were on that date or earlier than that date, and the other half were later).

Chapter Three is about 2012, and is concerned with the Republican race, because it was obvious President Obama would be the Democratic nominee. It describes the Republican Party’s unhappiness with the calendar, after the election was over.

Chapter Four describes the 2016 contests. The chapter provides a good history of both contests, but of course these events are close in time, and there are many other books that also describe this history. The chapter does reinforce the author’s main point, that voters in the early states have far more power than voters in the later states.

Chapter Five is a very useful reference chapter. It has complete information on who can vote in a presidential primary in each state. For the states with partisan registration and closed primaries, it has the text and references for all laws setting deadlines for voters to have joined the party. It has all the rules for the caucus states.

It also notes that, even though voters in some states may not have realized the deadline for joining the party in time to choose its primary ballot, at least voters who are diligent about knowing the rules can participate. By contrast, voters living in states that vote late are completely powerless to do anything about their lack of voting power, short of moving from one state to another.

Chapter Six explores whether it would be possible to use the courts to correct the problem of unequal timing. It also has a comprehensive and accurate description of all court decisions affecting the ability of parties to determine who can vote in their primaries.

Finally, chapter Seven describes various attempts over the last century to institute a single election day for all presidential primaries. The idea dates back to 1912, and shows that President Woodrow Wilson supported the idea and hoped to persuade Congress to enact such a law. But, he didn’t make it a priority, and nothing happened. This chapter also has a surprisingly long list of congressional bills on the subject of presidential primary dates. As the chapter notes, there have been more bills to establish regional rotating primaries than bills to set up a single presidential primary date. The author is puzzled at support for rotating regional primaries, because it still builds inequality into the system, in the context of any one particular election year.

It is plausible that the Libertarian Party will have its own presidential primaries in twenty states in 2020, the most for any party in history, other than the Democratic and Republican Parties. It is not possible to know the exact number until the 2018 election has been held. No third party in the past has ever been entitled to its own presidential primaries in more than ten states.

On June 26, the U.S. Supreme Court issued its opinion in National Institute of Family and Life Advocates v Becerra, 16-1140. This was not an election law case, but it has implications for election law. It said that California could not force anti-abortion health centers to tell clients how to obtain an abortion. The concurrennce, signed by Justices Anthony Kennedy, John Roberts, and Samuel Alito, says, "This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression." The majority opinion itself, by Justice Clarence Thomas, says, "As with other kinds of speech, regulating the content of professionals’ speech poses the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information."

Both quotes are relevant to the pending lawsuit Soltysik v Padilla, now awaiting a decision from the Ninth Circuit. The issue in that case is a California election law that compels registered members of unqualified parties to have the ballot label, "Party preference: none."

Massachusetts: both houses of the legislature have passed HB 4671, to set up automatic voter registration. The bill hasn’t passed yet, however, because the versions in each house differ. The bill is in conference committee.

North Carolina: on July 24, the legislature, sitting in special session, passed SB 3. It says that if a judicial candidate changed party affiliation in the 90 days before the filing deadline, he or she can’t have a partisan label on the ballot. Otherwise, all judicial candidates do have partisan labels, even though they are no primaries and no party nominees.

The Republican majority passed this bill because one of the State Supreme Court races now has three candidates on the ballot, two Republicans and one Democrat. Republican legislators are afraid the normal Republican vote will be split between the two Republicans, so they hope to change the race so it has one Republican, one Democrat, and one candidate with no party label. One of the two Republicans only became a Republican a few months ago; he had been a Democrat.

Florida: the Republican nominees are listed first this year, because the Republican Party won the last gubernatorial election. The Democratic Party filed a lawsuit against this law on May 24, but on July 24, a U.S. District Court denied injunctive relief because the lawsuit was filed too late. The law still may be struck down, but that can’t happen until 2019. Jacobson v Detzner.

Michigan: on July 27, an independent candidate for Attorney General, Chris Graveline, filed a federal lawsuit against the requirement that he needs 30,000 valid signatures by mid-July. The primary is not until August. Generally deadlines for independent candidates that are earlier than the primary are unconstitutional. Also, the number of signatures is so high that only twice in history has any statewide independent managed to complete the petition. Graveline v Johnson.

New Mexico: on July 18, an independent candidate for Rio Arriba county office, Carol Miller, filed a state lawsuit against the law that says independent candidates need signatures to get on the general election ballot, but candidates seeking a place on a primary ballot for county office do not need any signatures. The lawsuit depends on the state Constitution, which says elections shall be "free and equal." Miller v Padilla, Santa Fe County. On July 26, the court refused injunctive relief, and she then asked for relief from the State Supreme Court.

New York: the state is asking the Second Circuit to restore the ban on out-of-state circulators. A U.S. District Court had struck it down earlier this year. Free Libertarian Party v Spano.

North Carolina: on July 20, the Constitution Party filed a federal lawsuit against a new law that bans new parties from nominating anyone who had run in a primary for the same office earlier in the year. The basis for the lawsuit is that the law didn’t exist when the Constitution Party nominated three "sore losers". One had run in the Democratic primary and two had run in the Republican primary. Poindexter v Strach, e.d., 5:18cv-366.

North Dakota: on July 9, the Libertarian candidate for Secretary of State filed a lawsuit in the State Supreme Court, hoping to get an order for a recount. Roland Riemers needed 300 votes in the June 12 Libertarian primary to be considered nominated (no one ran against him), but he was credited with only 247 votes. The law says a recount should be granted when "any individual failed to be nominated in a primary election by 1% or less of the highest vote cast for a candidate for the office sought." The Republican in the open primary for Secretary of State received 54,563 votes, and 1% of that is 546. Riemers failed to be nominated by 47 votes. The Court has accepted this case. All party primary ballots are printed on the same sheet of paper, but voters are supposed to confine their votes to a single party’s column.

West Virginia: the Constitution Party will soon file a lawsuit to get its U.S. Senate candidate on the ballot. He is being kept off because he was a registered Republican earlier this year, and the law says no one can be a minor party candidate who was a member of another party earlier in the year. However, that law only passed this year, and it was not in effect when the Constitution Party nominated Blankenship. The bill was signed on March 22 but didn’t take effect until June 30.

STATE	REQUIREMENTS		SIGNATURES OR REGISTRATIONS OBTAINED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	SAM, etc.	Party Due	Indp. Due
Ala.	35,413	35,413	*too late	*too late	*too late	too late	June 5	June 5
Alaska	(reg) 8,925	#3,213	already on	(rg) *1,688	*441	0	June 1	Aug. 21
Ariz.	23,041	#36,697	already on	already on	0	0	March 1	May 30
Ark.	10,000	10,000	already on	too late	too late	too late	January 2	May 1
Calif.	(reg) 62,569	65 + fee	already on	already on	too late	too late	January 2	March 9
Colo.	(reg) 1,000	#1,000	already on	already on	already on	0	Jan. 10	July 12
Conn.	no procedure	#7,500	already on	already on	0	0	– – –	Aug. 8
Del.	(reg) 688	6,876	already on	already on	*286	0	Aug. 21	July 15
D.C.	no procedure	#3,000	already on	already on	*0	0	– – –	Aug. 8
Florida	0	pay fee	already on	already on	already on	0	Sep. 1	July 15
Georgia	54,306	#51,912	already on	0	0	0	July 10	July 10
Hawaii	750	25	already on	already on	already on	too late	Feb. 22	June 5
Idaho	13,809	1,000	already on	*700	already on	0	Aug. 30	March 9
Illinois	no procedure	#25,000	*already on	*too late	*too late	too late	– – –	June 25
Indiana	no procedure	#26,700	already on	*too late	*too late	too late	– – –	June 30
Iowa	no procedure	#1,500	already on	0	0	0	– – –	Aug. 17
Kansas	16,776	5,000	already on	0	0	0	June 1	Aug. 6
Ky.	no procedure	#2,400	already on	0	0	0	– – –	Aug. 14
La.	(reg) 1,000	#pay fee	already on	already on	170	0	May 17	Aug. 17
Maine	(reg) 5,000	#4,000	already on	already on	*too late	too late	Jan. 2	June 1
Md.	10,000	10,000	already on	already on	0	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 45,500	#10,000	already on	*finished	*too late	too late	Feb. 6	July 31
Mich.	32,261	30,000	already on	already on	already on	too late	July 19	July 19
Minn.	147,247	#2,000	*already on	*already on	*too late	0	May 1	June 5
Miss.	be organized	1,000	already on	already on	already on	0	March 1	March 1
Mo.	10,000	10,000	already on	already on	already on	0	July 30	July 30
Mont.	5,000	#10,685	already on	*in court	*too late	too late	March 15	May 29
Nebr.	4,880	(es) 121,000	already on	*too late	*too late	too late	Aug. 1	Sept. 3
Nev.	10,785	250	already on	*too late	already on	too late	June 3	June 3
N. Hamp.	21,746	#3,000	already on	0	0	0	Aug. 7	Aug. 7
N.J.	no procedure	#800	*already on	*already on	*too late	too late	– – –	June 5
N. M.	2,565	15,390	already on	already on	*already on	too late	June 28	June 28
N.Y.	no procedure	#15,000	*8,500	already on	0	10,000	– – –	Aug. 21
No. Car.	11,778	70,666	already on	already on	*already on	too late	May 16	April 23
No. Dak.	7,000	1,000	already on	0	0	0	April 15	Sep. 3
Ohio	54,965	5,000	*already on	already on	*too late	too late	July 3	May 7
Okla.	24,745	pay fee	already on	too late	too late	too late	March 1	April 13
Oregon	22,046	18,279	already on	already on	already on	0	Aug. 28	Aug. 28
Penn.	no procedure	5,000	*finished	*finished	*finished	0	– – –	Aug. 1
R.I.	16,203	#1,000	*too late	*too late	*too late	too late	Aug. 1	July 10
So. Car.	10,000	10,000	already on	already on	already on	0	May 6	July 16
So. Dak.	2,775	2,775	already on	*too late	already on	too late	July 1	Apr 24
Tenn.	33,844	25	already on	already on	0	0	Aug. 16	April 5
Texas	47,086	47,086	already on	*too late	*too late	too late	May 19	June 28
Utah	2,000	#1,000	already on	already on	already on	too late	Nov 30, 15	March 15
Vermont	be organized	#500	already on	0	0	0	Jan. 1	Aug. 7
Virginia	no procedure	#10,000	*already on	*too late	*too late	too late	– – –	June 12
Wash.	no procedure	#pay fee	*pri only	*pri only	too late	too late	– – –	May 18
West Va.	no procedure	#6,516	already on	already on	*in court	too late	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	too late	May 1	June 1
Wyo.	5,036	5,036	already on	0	already on	0	June 1	Aug. 27
TOTAL STATES ON			46*	26*	16*	0	“	“

#partisan label permitted.
*change since June 1 issue.
Also, older charts had a column for the Working Families Party, but that column has been removed. Instead there is now a column for the Serve America Movement Party (SAM Party). See below:

On July 3, Bloomberg News reported that a new party named the Serve America Movement has been formed, mostly by elite and wealthy individuals, many of whom live in the New York city area. So far the party has only entered one race, for Governor of New York. The party chose former Syracuse Mayor Stephanie Miner for Governor, and current Pelham Village Mayor Michael J. Volpe for Lieutenant Governor. She is a Democrat and he is a Republican. New York does not allow them to register as members of SAM until after the November 2018 election.

The petitioning chart on page five now has a column for the Serve America Movement, which is often called the SAM Party. The petitioning chart formerly had a column for the Working Families Party, but it has been many years since WFP did any petitioning to qualify itself. Its last party petitions were in Oregon and South Carolina in 2006. In recent years, it has lost its qualified status in Massachusetts, Vermont, and Delaware. It still has Connecticut, New York, Oregon, and South Carolina.

B.A.N. had already reported that the Republican nominee for U.S. House in the Illinois 3^rd district is a Holocaust denier, but recently learned that the Republican running in California’s 11^th district also is a denier. He is John Fitzgerald. He was the only Republican who entered the primary, so it is not surprising that he placed second. The incumbent Democrat, Mark DeSaulnier, is running for re-election and placed first.

On July 20, the Republican national committee said that the party’s presidential convention in 2020 will be in Charlotte.

On June 30, Texas held a special election to fill the vacancy in the 27^th district U.S. House seat. Texas special elections do not have party nominees. Individuals get on the ballot by paying a filing fee, with no vetting from any party; however party labels are on the ballot. Three Republicans, three Democrats, two independents, and one Libertarian, ran. The three Republicans together polled 59.85%; the three Democrats received 39.14%; the two independents got .61%; the Libertarian, Daniel Tinus, got .40%. In November 2016, the vote for this seat had been Republican 61.7%; Democratic 38.3%.

Every election year, the Oklahoma Board of Elections randomly chooses the party whose nominees will be listed first on the November ballot. This year, for the first time, the Libertarian Party will appear on top. This is the second time a third party has been listed first; the Reform Party had the top line in 1996.

Hal Patton, Mayor of Edwardsville, Illinois, will appear on the November ballot as the nominee of a party he created, the Downstate United Party. He is running for State Senate, 56^th district. He will be the only opponent of the Democratic nominee, Rachelle Crowe. Patton had wanted to be the Republican nominee, and no other Republican ran, but Patton was removed from the Republican primary ballot because he had signed a petition for a Democratic candidate for another office. Under Illinois law, when he signed that petition, he ceased to be a member of the Republican Party and was not eligible for the Republican nomination. He only signed the Democratic petition because he is a dentist and one of his patients asked him to sign.